Official Opinion 97-10

March 18, 1997

To:

Chairman Board of Pardons and Paroles

Re:

Application of the Ex Post Facto Clause of Art. I, Sec. X of the United States Constitution to the Sentence Reform Act of 1994

This Office has been asked for additional clarification regarding the application date for provisions of the Sentence Reform Act of 1994. You have also inquired about the current status of the power and authority of the Board of Pardons and Paroles in light of the ratification of Art. IV, Sec. II, Para. II of the Georgia Constitution. There appear to be three distinct categories of sentences and in each category the Board's authority and power is different. These three categories are addressed below.

Under the uncodified language of the Sentence Reform Act of 1994 (the Act), 1994 Ga. Laws 1959, § 16, the General Assembly expressed its intent as to the application of the Act's provisions. That Section states:

The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a "conviction" for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offenses committed on or after the effective date of this Act.

The Act became effective January 1, 1995 and the new sentencing provisions created by the Act only apply to offenses committed on or after that date. Thus, as to the first category, involving entirely new provisions such as O.C.G.A. §§ 17-10-6.1 and 17-10-7(b)(2), there are no ex post facto implications.

The second category of sentences involves, for example, the application of the recidivist mandates of the former O.C.G.A. § 17-10-7(b). That Section provided:

Any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which, if committed within this state would be felonies, commits a felony within this state other than a capital felony, must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

It should be noted that the above quoted Subsection is now codified substantially verbatim as O.C.G.A. § 17-10-7(c).

This provision, just like O.C.G.A. § 17-10-16, was enacted prior to the Sentence Reform Act of 1994 and is the type of statute passed by the General Assembly which the Supreme Court of Georgia has held "does not impinge on the authority of the Board but, rather, renders the defendant ineligible for parole in the first instance." Freeman v. State, 264 Ga. 27, 29 (1994). In Freeman, the Court found that the mandates of O.C.G.A. § 17-10-16 were imposed by the legislature and did not violate the constitutional power and authority of the Board of Pardons and Paroles. Similarly, other statutes like Section 17-10-7(c) which were enacted with mandates imposed by the legislature are not violative of the Constitution.

Therefore, since the provisions of statutes like O.C.G.A. § 17-10-16 and former O.C.G.A. § 17-10-7(b) were validated as constitutional under Freeman prior to the enactment of the Reform Act, there is no retroactive application of maximum sentences in those instances. The General Assembly rendered recidivists "ineligible for parole in the first instance."

Freeman v. State, 264 Ga. at 29. Thus, the Board's power and authority are not invoked in those cases. This analysis confirms the advice rendered by this Office in the letter dated February 20, 1995.

The third category of sentences are those over which the Board of Pardons and Paroles retains discretion under the constitutional and statutory provisions. These sentences continue, of course, to be guided by the applicable decisions in Sultenfuss v. Snow, 35 F.3d 1494 (11th Cir. 1994) (Georgia's parole system does not create a legitimate expectation of parole giving rise to a liberty interest protected by due process), Jones v. Georgia State Bd. of Pardons and Paroles, 59 F.3d 1145 (11th Cir. 1995) (retroactive change in method for calculating tentative parole month under the parole guidelines system did not violate ex post facto constitutional prohibition) and Charron v. State Bd. of Pardons and Paroles, 253 Ga. 274 (1984) (the notice provisions of O.C.G.A. § 42-9-46 place no limitation on the substantive power of the Board, but rather provide that notice to authorities must be given).